Leading Supreme Court judgment on contributory negligence and composite negligence in motor accident

The Tribunal assumed that the extent of negligence of the appellant and the first respondent is fifty:fifty because it was a case of composite negligence. The Tribunal, we find, fell into a common error committed by several Tribunals, in proceeding on the assumption that composite negligence and contributory negligence are the same. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned. {Para 5}

6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1082 of 2008.

Decided On: 01.02.2008

T.O. Anthony Vs. Karvarnan and Ors.

Hon'ble Judges/Coram:

K.G. Balakrishnan, C.J. and R.V. Raveendran, J.

Author:K.G. Balakrishnan, C.J.

Citation: 2008 ACJ 1165 SC,MANU/SC/7181/2008.

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What is difference between contributory negligence and composite negligence?

 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.

7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1082 of 2008 

Decided On: 01.02.2008

 T.O. Anthony Vs.  Karvarnan and Ors.

Hon'ble Judges/Coram:

K.G. Balakrishnan, C.J. and R.V. Raveendran, J.

Citation: (2008) 3 SCC 748

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What is distinction between composite negligence and contributory negligence?

There is a distinction between composite negligence and contributory negligence. The Hon'ble Apex Court in the case of Khenyei v. The New India Assurance Co. Ltd. and Ors (Supra) has inter-alia held in paragraph 15 of the Judgment as under:

"15. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the accident cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but due to the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan has held that in case of contributory negligence, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoers separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident."

IN THE HIGH COURT OF BOMBAY

First Appeal No. 999 of 2012 and Cross Objection (ST.) No. 30505 of 2012

Decided On: 05.05.2016

 National Insurance Company Ltd.  Vs. Chaitali Samir Parekh and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and C.V. Bhadang, JJ.

Citation: 2017 (2) ALLMR 387

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Caselaw in the case of an accident arising out of composite negligence

The law in the case of an accident arising out of composite
negligence has been considered by a 3 Judges’ bench of this Court in
Khenyei v. New India Assurance Co. Ltd. & Ors. (AIR 2015 SC 2261)
wherein following propositions have been laid down :
“(i) In the case of composite negligence,
plaintiff/claimant is entitled to sue both or any one
of the joint tort feasors and to recover the entire
compensation as liability of joint tort feasors is
joint and several.
(ii) In the case of composite negligence,
apportionment of compensation between two tort
feasors vis a vis the plaintiff/claimant is not
permissible. He can recover at his option whole
damages from any of them.
(iii) In case all the joint tort feasors have been
impleaded and evidence is sufficient, it is open to
the court/tribunal to determine inter se extent of
composite negligence of the drivers. However,
determination of the extent of negligence between
the joint tort feasors is only for the purpose of their
inter se liability so that one may recover the sum
from the other after making whole of payment to
the plaintiff/claimant to the extent it has satisfied
the liability of the other. In case both of them have
been impleaded and the apportionment/ extent of
their negligence has been determined by the
court/tribunal, in main case one joint tort feasor
can recover the amount from the other in the
execution proceedings.
(iv) It would not be appropriate for the
court/tribunal to determine the extent of composite
negligence of the drivers of two vehicles in the
absence of impleadment of other joint tort feasors.
In such a case, impleaded joint tort feasor should
be left, in case he so desires, to sue the other joint
tort feasor in independent proceedings after
passing of the decree or award.”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8879 OF 2015
[Arising out of SLP [C] No.24685/2013]
Kamlesh & Ors. … Appellants
Vs.
Attar Singh & Ors. … Respondents
Dated;October 27, 2015

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Guidelines for calculation of compensation in case of accident by multiple vehicles

In the instant matter the main question which arose for consideration was, whether it is open to a claimant to recover entire compensation from one of the joint tort feasors, particularly when in accident caused by composite negligence of drivers of trailor-truck and bus has been found to 2/3rd and 1/3rd extent respectively.

The present was a case of composite negligence where injuries were caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis-à-vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.

The following was observed and held:

(i)    In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several. 

(ii)    In the case of composite negligence, apportionment of compensation between two tort feasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. 

(iii)    In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.

(iv)    It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the

absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award. 

Supreme Court of India

Khenyei vs New India Assurnace Co.Ltd.& Ors on 7 May, 2015

Bench: H.L. Dattu, S.A. Bobde, Arun Mishra

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Difference between composite negligence and contributory negligence

Composite negligence refers to the negligence on the part of the two or more persons. Where a person is injured as a result of the negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case the injured need not establish the extent of responsibility of each wrong-doer separately. On the other hand, where a person suffers injury partly due to the negligence on the part of another person or persons and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence.

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